Eleventh Circuit Rules Search Is Legal Despite 25 Day Delay in Obtaining Warrant – U.S. v. Laist

December 18, 2012 by David S. Seltzer

Searches are vital in child pornography possession cases, because this is one of the few crimes where just having something in your possession is enough to trigger severe penalties. As a result, if the search that turned up the evidence is deemed illegal, and the evidence is thus thrown out, the entire case may collapse. That was the result defendant David Laist hoped for in U.S. v. Laist, a case from our own home appellate court, the Eleventh U.S. Circuit Court of Appeals. The FBI seized computer equipment from Laist after Laist indicated that child pornography was on the equipment, but delayed seeking a search warrant for 25 days. Laist argued that the delay created an unreasonable search and seizure in violation of the Fourth Amendment, but the district court denied his motion to suppress and the appeals court affirmed.

Laist was a student at the University of Georgia when the FBI identified him as the owner of an online account that had been used to possess and distribute child pornography. Three agents found Laist at home, where he confessed that there was child pornography on his computer and five external hard drives. He signed two forms consenting to a search of the equipment. The agents seized the equipment as evidence, but Laist revoked his permission a week later on the advice of his criminal defense attorney. As a result, agents held them on probable cause and applied for a search warrant. However, the search warrant was not issued until more than a month after the search, because of the volume of work for the agent and the judge. At trial, Laist argued that this delay was unreasonable and violated the Fourth Amendment in his motion to suppress. After a hearing, the district court denied. Laist pleaded guilty conditionally and was sentenced to 10 years in prison.

On appeal, he renewed his argument that the delay was unconstitutional. The Eleventh Circuit started by noting that courts must review delay cases such as this on a case-by-case basis. The judge’s delay in reviewing the application was not attributable to the government, the Eleventh said; thus, only the delay caused by the FBI agent is relevant. And that delay was not unreasonable, the court said. While Laist had a clear interest in his computer equipment, he had been permitted to retrieve files he needed for school. Furthermore, the court said, Laist not only admitted to the agents that there was child pornography on the computer, but actually showed them an image, enhancing the government’s interest in searching his equipment. The agent was diligent enough in seeking a warrant; he started the process as soon as he knew Laist was revoking his consent to a search and put much detail into his affidavit. The agent was also extremely busy. Thus, the appeals court found the delay reasonable considering all the circumstances.

Though Laist himself did not succeed at getting his search thrown out, this case does cite a case in which a child pornography defendant had a search declared unreasonable. Notably, that defendant did not confess that the equipment did have child pornography on it and did not show an image to law enforcement. Both of those are factors that undoubtedly strengthened the case for the delay to be considered reasonable. That is, police already knew the nature of what they would find (though not its extent). In my experience as a criminal defense attorney, defendants often confess voluntarily—but this is a mistake, as Laist’s attorney undoubtedly told him. I advise all of my clients to stay silent when dealing with law enforcement, and leave the talking to an experienced defense lawyer.

Seltzer Law, P.A., focuses its practice on defending people across the U.S. accused of serious cyber crimes. If you or someone you love is facing charges related to technology or the Internet, don’t wait to call us. You can reach us online for a free consultation or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).

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